Page:Ruffhead - The Statutes at Large, 1763.djvu/15

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xi
PREFACE.

this Time obtained ſome Share of Influence : But ſuch was the little Regard paid to their Rights, that their Aſſent[1] was not, for a long Time after, held eſſential to the enacting of Laws.

Even the Barons themſelves were, for ſome Time, confidered merely as Counſellors, and, aſpiring alſo to the Honours of the Chace, with the romantic Glory of Chivalry, they were glad to be relieved from the ſpeculative Buſineſs of Legiſlation, which they willingly committed to the King and his Judges [2]


But as greater Refinement took Place, they not only aſſerted their Right of Aſſent to Acts of Legiſlation, but, while their Influence was predominant, they, in fact, bid open Defiance to the Crown.

The Commons ſeem at firſt:, among other Reaſons, to have been oppoſed as a Counterbalance to their exorbitant Power : And they naturally adhered to the Sovereign, from Averſion to the Barons, who were no leſs their Oppre{{ls ſors, than Opponents to the Crown [3]

  1. Conqueſt; or at leaſt very early in the Reign of Hen. 3. For the 25th of Ed. I. which confirms Magna Charta, ſays, that it was made by the common Aſſent of all the Realm. And the 15th of Ed. 3. ſpeaks more ſtrongly, that Magna Charta was made par le Roy, fes Piers, & la Communalté de la Terre: And the Judgment of thoſe early Times is more to be regarded than the partial Construction of modern Interpreters. Moreover, though the Summons of the 49 H. 3. is the firſt on Record, which comes near to the Form ſo long in Uſe, yet there are Inſtruments on Record long before this Time, from whence it may be inferred that the Commons were called to the Great Council, as appears from Whitlocke's Notes's on the King's Writ for chuſing of Members of Parliament; a MSS. the Property of Dr. Moreton, who favoured the Editor with the Peruſal of it. Brady, however, with his uſual Subtlety, would perſuade us, that the Word Commnunalty antiently meant the Barons only, and Tenants in Capite, or military Men : But though he has cited fome Inſtances where the Word maybe ſo underſtood, yet, in the 14 Ed. 3. Stat. 2. the Words Communalty and Commons are expreſsly uſed as ſynonymous Terms : And there are ſuch inimmerable Inſtances in the antient Records where the Words Communitas and Commnunaute are deſcriptive of the Commons only that no unprejudiced Writer could overlook or ſuppreſs them. But Brady, who reſts his Arguments on mere verbal Niceties, would farther perſuade us that the Words Proceres, Nohiles, Optimates, Magnates, &c. conſtantly denote the Barons or Noblemen ; whereas, however they maybe ſo taken in a claſſical Senſe, yet, in the antient Records, they are often applied to diſtinguiſh the chief of the Commoners, that is, the repreſentative Body; as in the Stat, de Alfportatis Religioſorum, 35 Ed. I. -poſt deliberationem, & c. cum Comitibus Baronibus, Proceribus et aliis Nobilibus, ac Communltatibus Regni, where the Words Proceriius, Nobilibus:, ac Commimitatibus, muſt be deſcriptive of the Knights, Citizens, and Burgeſſes. And of this Opinion is Lord Coke, 1 Inſt. 583. Nay, it would not be difficult to produce many Records, where the Word Barones, notwithſtanding Brady ridicules the Notion, was antientiy applied to denote the Commons, and particularly the Burgeſſes. Whitlocke's MSS. above cited.

  2. That their Aſſent was a Matter of Right, however it might be overruled by the arbitrary Practices of early Times, may be inferred from the Words of the Writ of Summons, which are ad audiendmn & faciendum & consenteindum. It is obſervable that the Summons to the Biſhops and Barons was de arduis Negotiis Regni tractaturi & Conſilium imipenſuri. Yet there are many Inftances on Record which prove that the Commons alſo were conſuted about important Affairs of State, ſuch as Peace and War, &c. For ' which ſee Cotton. Poſtbum.
  3. We find in the Statute Code, ſome Traces of this Prerogative exerciſed by the King. The Statute of Gavlet, 10 Ed. 2. for Instance, runs thus : " It is provided by our Lord the King and his Justices &c." without any Mention either of Lords or Commons. That Laws in theſe early Times were made by the ſole Authority of the King, without the Concurrence of any other legiſlative Branch, is farther evident from the Mirroir des Justices, the Author of which complains, " that Ordinances are only made by the King and his Clerks, and by Aliens and others, who dare not contradict the King, but ſtudy to pleaſe him. Whence," he concludes, " Laws are oftener dictated by Will, than founded on Right."
  4. If we confider the Influence the King had in Demeſne Towns, he might as well have been abſolute with a Parliament as without; and the Parliament at firſt, ſo far as it conſiſted of Commoners, was intended as a Support to Prerogative.
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